(HC) Osborne v. Cate, No. 2:2009cv03594 - Document 17 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/14/2010 RECOMMENDING that this action be dismissed w/out prejudice, and respondent's 15 motion to dismiss be denied as moot. Referred to Judge Frank C. Damrell, Jr.; Objections due w/in 21 days. (Yin, K)
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(HC) Osborne v. Cate Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 TIMOTHY JOE OSBORNE, 11 Petitioner, 12 13 No. 2:09-cv-3594 FCD KJN P vs. MATTHEW CATE, 14 Respondent. 15 FINDINGS AND RECOMMENDATIONS / 16 By order filed November 5, 2010, petitioner was ordered to show cause, within 17 twenty-one days, why his action should not be dismissed due to petitioner’s failure to file an 18 opposition to respondent’s motion to dismiss filed July 2, 2010. Petitioner was cautioned that 19 failure to respond to the court’s order, or to file an opposition to the pending motion to dismiss, 20 would result in a recommendation that this action be dismissed. The deadline has now expired, 21 and petitioner has not shown cause or otherwise responded to the court’s order or to respondent’s 22 motion to dismiss the petition. 23 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed 24 without prejudice. See Local Rule 110, 230(l); Fed. R. Civ. P. 41(b). Respondent’s motion to 25 dismiss (Dkt. No. 10) should be denied as moot. 26 //// 1 Dockets.Justia.com 1 These findings and recommendations are submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). These findings 3 and recommendations are submitted to the United States District Judge assigned to the case, 4 pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days after being served with these 5 findings and recommendations, any party may file written objections with the court and serve a 6 copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s 7 Findings and Recommendations.” Any response to the objections shall be filed and served 8 within 14 days after service of the objections. The parties are advised that failure to file 9 objections within the specified time may waive the right to appeal the District Court’s order. 10 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 DATED: December 14, 2010 12 13 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 14 15 osbo3594.f&r.dsm 16 17 18 19 20 21 22 23 24 25 26 2